ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20160013194 APPLICANT REQUESTS: Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her re-entry (RE) code as RE-1 instead of RE-4. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states she would like to submit an application to become an officer in the U.S. Air Force. After speaking with an Air Force counselor, she will not qualify with anything except for an RE-1. 3. A review of the applicant’s service records shows the following: a. On 13 September 2005, she enlisted in the Regular Army. b. Separation proceedings were initiated on 30 June 2009 for homosexual conduct under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 15 (Discharge for Homosexual Conduct). Her immediate commander recommended an honorable discharge. c. On 30 June 2009, she consulted with legal counsel. She was advised of the basis for the contemplated action to separate her under the provisions of AR 635-200, chapter 15 (she made a statement to her Company Commander that she has engaged in homosexual acts and that she would continue to do so). d. She elected to waive consideration of her case by an administrative separation board, provided she received an honorable discharge. She elected not to submit statements in her own behalf. e. Consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge on 2 July 2009, under the provisions of AR 635-200, chapter 15. f. On 15 July 2009, she was discharged from active duty. Her DD Form 214 shows she completed 3 years, 10 months, and 3 days of active service. It also shows in: * item 24 (Character of Service), Honorable * item 25 (Separation Authority), AR 635-200, paragraph 15-3b * item 26 (Separation Code), JRB * item 27 (Reentry Code), 4 * item 28 (Narrative Reason for Separation), Homosexual Conduct (Admission) g. Her service record is void of adverse counseling, disciplinary action, misconduct, lost time, court-martial conviction, or any derogatory information. 4. In accordance with DOD guidance, her overall record contains no evidence that would present a barrier to correcting her record to show she was separated by reason of Secretarial Authority (paragraph 5-3 of AR 635-200), with an SPD code of "JFF" and an RE code of "1." BOARD DISCUSSION: After reviewing the application and all supporting evidence, as well as the applicant’s statement, the Board found that relief was appropriate. Based upon current policy and guidance involving the conduct that resulted in the administrative discharge of the applicant, the Board determined full relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending her DD Form 214 to show Secretarial Authority, JFF and changing the Reentry Code from “RE-4” to “RE-1”. SIGNATURE: ___________X________________ Chairperson I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, prescribed the policies, standards, and procedures to ensure readiness and competency of the fore while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 15 (Discharge for Homosexual Conduct) contained general policies concerning homosexual conduct, including statutory provisions, pertinent definitions, and commander guidelines for fact-finding inquiries. b. Paragraph 15-2 (Discharge policy) states homosexual conduct is grounds for separation from the Army under the criteria in paragraph 15-3. c. Paragraph 15-3 (Criteria for discharge) states, in pertinent part, a Soldier will be discharged if the Soldier has made a statement that he/she is a homosexual or bisexual, or words to that effect, unless there is further approved finding that the Soldier has demonstrated that he/she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. 3. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve. Table 3-1 included a list of the RA RE codes. RE codes are numbered 1, 3, and 4. * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable; those individuals are ineligible unless a waiver is granted * RE-4 applies to Soldiers ineligible for reentry 4. The "Don't Ask, Don't Tell" policy was implemented in 1993 during the Clinton presidency. This policy banned the military from investigating service members about their sexual orientation. Under that policy, service members may be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex. 5. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, Subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under DADT or prior policies. The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge (the change should be to "Secretarial Authority" (Separation Program Designator (SPD) Code JFF)) * characterization of the discharge to honorable * the RE code to an immediately-eligible-to-reenter category 6. For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met: (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT; and (2) there were no aggravating factors in the record, such as misconduct. 7. The memorandum further states that although each request must be evaluated on a case-by-case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors. The memorandum also recognized that although BCM/NRs have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is DOD policy that broad, retroactive corrections of records from applicants discharged under DADT [or prior policies] are not warranted. Although DADT is repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law. Similarly, DOD regulations implementing various aspects of DADT [or prior policies] were valid regulations during those same or prior periods. Thus, the issuance of a discharge under DADT [or prior policies] should not by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action.